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Debates of the Senate (Hansard)

Debates of the Senate (Hansard)

2nd Session, 37th Parliament,
Volume 140, Issue 62

Wednesday, June 4, 2003
The Honourable Dan Hays, Speaker


Wednesday, June 4, 2003

The Senate met at 1:30 p.m., the Speaker pro tempore in the Chair.



People's Republic of China

Fourteenth Anniversary of Massacre in Tiananmen Square

Hon. Consiglio Di Nino: Honourable senators, 14 years ago today, the world was stunned by the images of violence that filled television screens and radio broadcasts following the massacre in Tiananmen Square. The events evoked outrage not only for the loss of innocent lives but also because of what the violence represented: a brutal crackdown on China's pro-democracy movement and more broadly, an attack on fundamental human rights and freedoms.

The events in Tiananmen Square focused the world's attention on the issue of human rights abuses in China. Almost 15 years later, however, Chinese citizens continue to suffer at the hands of their nation's government. Reports from human rights organizations such as Amnesty International and Human Rights Watch are not encouraging. A recent trend being reported by these organizations is the sentencing of religious and political dissidents to terms in psychiatric hospitals.

In the March 31 edition of The Globe and Mail, Mr. John Lloyd exposed this systematic imprisonment. Quoting China expert Jonathan Mirsky, Mr. Lloyd described, in some detail, the treatment of Falun Gong practitioners at the hands of Chinese authorities. According to Mr. Mirksy:

Tens of thousands were detained, arrested, charged, imprisoned and sometimes tortured — and hundreds were sent to mental hospitals.

Honourable senators, the Universal Declaration of Human Rights, which the Chinese government continues to ignore, states that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

It is imperative that we continue to shine a powerful light on the atrocities committed by the Chinese government and begin to hold it accountable for the repression of its citizens.

On this sombre anniversary, honourable senators, it is important that we do not forget the lessons that we learned from the Tiananmen Square massacre and that we recommit ourselves to addressing the issue of human rights abuses in China.


Canada Customs and Revenue Agency

Auditor General's Report—Border Security

Hon. Consiglio Di Nino: Honourable senators, my question is for the Leader of the Government in the Senate and relates to chapter 2 of the latest Auditor General's report. This chapter reviews the efforts of the Canada Customs and Revenue Agency to improve border security since the events of September 11.

While the Auditor General compliments the CCRA, she points out that there are critical areas of border security that need more attention. These areas include:

...integrating the risks of other government entities into Customs risk assessments, analyzing examination results to provide better information for targeting high-risk travellers and shipments, analyzing compliance verification results...and ensuring Customs officers get the training they need in a timely manner.

The agency responded that it would continue to improve its performance in these areas.

Honourable senators, it has been over a year and a half since September 11. The CCRA has been allocated $433 million over the next five years to do its part in enhancing the personal and economic security of Canadians. Some of the matters raised by the Auditor General had been identified by the Auditor General as far back as the year 2000, three years ago.

Could the Leader of the Government please shed some light on why the CCRA has not met its responsibility to increase border security in a more timely fashion? Is this a case of bureaucratic inertia, or is this the consequence of a leadership vacuum emanating from the upper echelons of government?


Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it is unusual, but I do not agree with anything the honourable senator has said because everything he has said is, quite frankly, incorrect. The Auditor General's report recognized the tremendous progress — her words, not mine — that the CCRA and other departments have made in implementing the Smart Border agenda, which includes the very security issues the honourable senator has addressed.

Have we maximized the work that needs to be done? No, we have not. We are continuing to train more and more workers. We are entering into further agreements with the United States with respect to Smart Border action, which not only will make for better surveillance in terms of weeding out those who should not enter either country, but also, at the same time, make it possible for Canadians with good references and qualities to cross into the United States as quickly as possible, and for Americans with the same qualities to enter Canada.

Senator Di Nino: It is interesting that we would read the same document differently, although it is not completely surprising. I did say that the Auditor General compliments CCRA for the improvements it has made. However, when we talk about the fact that better information to target high-risk scenarios is not being received, and when we talk about the Auditor General suggesting that customs officers are not being trained in a timely fashion, I do not think, honourable senators, that that is a compliment.

In her report, the Auditor General also reveals that the CCRA has not systematically tracked its spending on projects for public security and anti-terrorism and will likely — these are her comments, not mine — not be able to fully account for how those funds have been spent. How can Canadians be assured that the funds allocated to the CCRA for increased border security and anti-terrorism initiatives have been properly spent if the CCRA does not keep track of such spending, and what will the political leadership of this government do to straighten up this mess?

Senator Carstairs: Honourable senators, the honourable minister responsible has indicated that the CCRA is in the process of reviewing all of the Auditor General's comments and concerns, and that they will address those comments and concerns with dispatch.

As to whether we are a safer country to enter or to exit today than we were before September 11, I would suggest, in no uncertain terms, that we are. Have we met all of our objectives? Our own Senate committee has indicated that, no, we have not. Clearly more work has to be done. The government recognizes that and is pursuing those initiatives.


Severe Acute Respiratory Syndrome—World Health Organization Criteria for Exporting Disease

Hon. Wilbert J. Keon: Honourable senators, my question is for the Leader of the Government in the Senate and deals with the SARS outbreak in the Toronto area. Toronto is now reporting 64 active, probable cases of SARS, which surpasses the benchmark of 60 set by the World Health Organization as part of the criteria it uses to issue a SARS-related travel advisory. The WHO has said that it has not decided to reissue the Toronto advisory, but it was concerned about reports that the city may be exporting cases of the disease. Although that could be a reference to the rumour that a case has been exported to Philadelphia, it may also refer to the five cases of SARS that have been reported in Parry Sound, Ontario, which have been traced back to the cluster in Toronto.

Could the Leader of the Government in the Senate tell us if Health Canada understands the WHO criteria for exporting cases is solely based on exporting cases to other countries, or are cases exported from Toronto to other Canadian cities also included?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, my understanding is that the WHO comments related to SARS cases that were exported from Canada as a whole.

Having said that, this causes grave concern because we understand that containment is absolutely critical. Therefore, two individuals from Parry Sound have now been placed in Toronto hospital settings where they have the appropriate models of care.

As the honourable senator knows, at its regular Tuesday meeting yesterday, the WHO decided not to issue a travel advisory against Toronto. They have three criteria. The first is the number of 60, which unfortunately we have gone slightly over. The second is whether it is in the community, in the sense that it has spread outside the cluster of health care workers. To date, it has not spread outside the cluster of health care workers. Every case has been traced back to the original source, that is, the workers. The third criterion is the one that the honourable senator addressed, which is the issue of whether someone infected with the SARS virus has left the country. There is no proof that, since the first cluster of cases, anyone infected with the SARS virus has left Canada. As a result, WHO has maintained its position not to issue a travel advisory.

I should also inform the senator, because I think this is of critical importance to all of us, that there is now daily contact between the Department of Health and WHO. Should WHO, this time, move to take further action, they will inform the Department of Health before they take the action so that a defence to that proposed action can be put before and not after the fact, which was the case when the first cluster of cases occurred.

Senator Keon: Thank you. That is commendable, and I am sure it will improve the situation a great deal.

Severe Acute Respiratory Syndrome— Screening of Travellers Leaving from Pearson International Airport

Hon. Wilbert J. Keon: Honourable senators, the World Health Organization Web site is still recommending exit screening for air travellers leaving Toronto for international destinations, which would include mandatory interviews at check-in counters. Health Minister Anne McLellan has said that some airlines have been more cooperative than others in conducting these screening interviews. I must say, having been through the Toronto airport twice in the last two days, that I do not envy the problem this creates for the authorities.

Could the Leader of the Government tell us if the government could take some action to force all airlines at Pearson to conduct this screening with their international passengers?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, the minister has indicated that some officials were easier to convince than others. I understand that they are all convinced that these interviews may take place.

A passenger will go through a number of stages when exiting the country. The passenger will be asked questions posed by the agents of the airlines. Three essential questions will be put. If a passenger answers yes to any one of those questions, he or she will then be interviewed by a nurse stationed at the airport. If the passenger shows any signs of infection, the appropriate steps that were already in place, and which continue to be in place, will be taken. The safeguards in the system have been increased since the onset of cluster number two. Hopefully, it is now fully in place and fully active.

Citizenship and Immigration

Auditor General's Report—Medical Surveillance of Immigrants

Hon. Brenda M. Robertson: Honourable senators, in a status report released last week, the Auditor General expressed concerns over inadequacies in the medical surveillance of immigrants to Canada. At present, the Department of Citizenship and Immigration does not know what percentage of immigrants comply with medical surveillance requirements for diseases such as inactive tuberculosis and within what time frame they do so. There is also no set time frame among the provinces for conducting medical evaluations on refugee claimants. In Quebec, it is five days, but in Ontario, it is 60 days. As we have seen by the crisis created by SARS in Toronto, it is crucial that we be vigilant in tracking and treating diseases brought into this country from elsewhere and do so in as expedient a manner as possible.

My question for the Leader of the Government in the Senate is simply this: Is the Department of Citizenship and Immigration working on creating guidelines for the timely evaluation and notification of immigrants of their health problems and their subsequent compliance with reporting to public health officials?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, it is important that we be clear on what the process is now. There is a difference at the present moment between the process for immigrants and the process for refugees. Immigrants are examined prior to their arrival in Canada.


When they arrive in Canada and the indications are that they have inactive tuberculosis, for example — and "inactive" is the important word here — the provinces are then notified that those individuals have entered the immigration community.

What seems to be much more problematic — and something that the department has agreed, as a result of the Auditor General's report, to investigate and immediately put into place — is that the refugees, who had no examination prior to coming into this country, were not receiving that examination until after they had been accepted as a refugee. Clearly, since these people, for the most part, are not incarcerated but out in the community, it is important that their examinations and any necessary treatment take place immediately. The department recognizes that that area is not receiving the attention it requires, and they are addressing it.

Senator Robertson: Honourable senators, the minister has answered part of my second concern, but not totally. The status report also revealed that after a medical exam is conducted on a refugee claimant, immigration department officials do not currently notify either the claimant or the public health authorities in their province or territory that the individual requires medical surveillance, unless that claimant applies for a work or study permit. It is not done when the refugee achieves citizenship status. The claimant could be a Canadian citizen. Until they apply for a study or a work permit, nothing is done with their medical surveillance.

I should like the Leader of the Government in the Senate to be clearer on this matter. We want to know if the federal government is working with the provinces to create a medical notification process for immigration officials to follow, something that is specific and accurate. The process is all over the map right now. The situation is not just what the honourable leader said, but it is in addition to that. I would like to have an answer that would clear that up.

Senator Carstairs: I do not think Senator Robertson is quite clear regarding the fact that they could be citizens. They cannot apply for citizenship until they have had a formal acceptance of their refugee claim. At the formal acceptance of their refugee claim, the notification is made.

The problem is the time between when they arrive in the country and ask to be a refugee and when they have been told that their refugee claim has been accepted. That is the area of concern right now. Senator Robertson is quite right that it is of genuine concern. The department is working with the provinces to ensure that there is a quicker notification system, particularly for two diseases — tuberculosis, which is inactive, and syphilis.

Senator Robertson: What is the average waiting time for a refugee to become a Canadian citizen? Could the minister give me an average so that we might better identify the exposure?

Senator Carstairs: I do not have that exact figure with me. I think it is in the range of three to five years at the present time. There is a significant gap that needs to be addressed.

Foreign Affairs

Study on Trade Relationships with United States and Mexico—Tabling of Final Report

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, my question is for the Chair of the Standing Senate Committee on Foreign Affairs. Honourable senators will recall that, on November 21 last, this house passed an order of reference for the Foreign Affairs Committee to conduct a review of the NAFTA and the FTA. Could the Chair of the Foreign Affairs Committee give an indication to the house as to whether the hearings of the committee have been proceeding and when we might expect to have a report from the committee?

Hon. Peter A. Stollery: Honourable senators, yes, our hearings have proceeded. The committee has had 25 or 26 meetings with a great variety of witnesses. We have heard wonderful witnesses from Vancouver, Calgary, Winnipeg, Ottawa and the Atlantic provinces.

At this moment, we are finalizing our report. I believe we are reviewing the third draft. I have every hope that, with the cooperation of members of the committee, we will be able to table our report by next week. At least that is our goal. However, as honourable senators know, there are always bureaucratic elements in reports, such as translation, editing and things of that nature. We are in the final stages.

Senator Kinsella: I thank the Chair of the Foreign Affairs Committee for that information. I am sure all honourable senators look forward to receiving a tabled copy of the report of the study on the NAFTA and the FTA.

If it is not considered premature, I noticed, in reading the transcript of one of the sessions, that the Honourable Minister Pettigrew appeared. If I read correctly the minutes of the committee, Mr. Pettigrew praised the Foreign Affairs Committee for conducting this review; is that correct?

Senator Stollery: Honourable senators, the minister was complimentary about our hearings.

We heard from Professors Helliwell and Harris in Vancouver, two of the most prominent people in the country on the Free Trade Agreement. As every honourable senator is aware, I believe this is the fourteenth or fifteenth anniversary of the FTA and the tenth anniversary of the NAFTA. I think there will be a significant amount of information in our report of great interest not only to members of the Senate but to members of the Canadian public at large.

Human Resources Development

Bovine Spongiform Encephalopathy—Aid to Beef Industry Workers

Hon. Douglas Roche: Honourable senators, my question, directed to the Leader of the Government in the Senate, concerns the crisis in the beef industry, in particular as it affects Alberta.

I am sure the minister will be aware that another 650 Alberta cattle will be slaughtered and tested for mad cow disease, bringing to almost 2,000 the number of slaughtered cattle. Fifteen farms in Alberta, Saskatchewan and British Columbia remain under quarantine, which is enlarging the number of unemployed, a situation that is compounded by the border still being closed. There is no sign of it being reopened. There is some modest pressure within the United States not to open it for some time to come.

This brings me to the question of assistance for the 500 to 1,000 workers in Alberta who have already been laid off. Recognizing that the Government of Canada does not want to waive the two- week waiting period for Employment Insurance, can the minister state if there are discussions or negotiations underway in which there would be a package of aid provided not just to these workers that I have named but, by extension, to a wide milieu of workers in associated fields who will experience economic setbacks by the continuation of this crisis? Is there some sort of package that the federal government will participate in, if not actually lead, to provide that help?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I can tell the honourable senator that he is quite correct. The two-week waiting period for EI has not been waived, in the same way that it is not waived for any other industry that has a shutdown. Some people are comparing this with the waiver that occurred in the SARS situation, where we were dealing with a health emergency. People who had to remain within their homes were therefore ineligible to seek work under any circumstances. As well, we wanted the added incentive of their remaining within the quarantine that had been imposed upon them.


In terms of other assistance programs, it is too early to talk about specific assistance programs, just as the assistance programs for SARS are beginning to unfold. Similarly, the assistance programs announced yesterday for the fishery in Newfoundland took some time before the full extent of the problem could be identified. However, I can assure the honourable senator that ministers are working on plans with respect to this industry.

HRDC has made it very clear that it will use the EI system in innovative ways, if it is possible. As of today, three applications have been received by HRDC and approved for work-sharing in the province of Saskatchewan so that people who may have been laid off can maximize their working opportunities and also their benefits with others in the community. Those programs are already in place.

As to the long-term assistance, as the honourable senator indicated, the border being open is the most important issue. The sooner that border is open, the less assistance will be required. Opening the border must remain the absolute focus of the government. However, I want to assure the honourable senator that ongoing considerations are being given to the other problems.

Visitors in the Gallery

The Hon. the Speaker pro tempore: Before I recognize Senator Roche, I wish to draw the attention of honourable senators to the presence in the gallery of delegates from the Bahrain Legislators' Study Mission.


On behalf of all the senators, I welcome you to the Senate of Canada.

I also wish to draw to your attention the presence in the gallery of Guy Lafleur, the guest of Senator Mahovlich. On behalf of all the senators, Mr. Lafleur, I welcome you to the Senate of Canada.


Hon. Senators: Hear, hear!


Bovine Spongiform Encephalopathy—National Inspection Agency for Beef Industry

Hon. Douglas Roche: Honourable senators, I thank the minister for her answer. I would ask her if she would carry forward to the cabinet the humanitarian considerations with respect to helping people affected by this crisis, the humanitarian considerations that I normally associate with the minister's representations.

I turn now to a second major issue concerning this crisis. At the heart of the crisis is the dual system of inspection that pertains in the beef industry. A slaughterhouse, under provincial jurisdiction, inspected the cow that had mad cow disease because it was not intended for export beyond the province, whereas cattle destined for consumption outside any province are subject to federal inspection. Perhaps it is time to review this duality. Is the government giving consideration to one national inspection standard that would involve federal-provincial cooperation and that might obviate this kind of crisis down the line?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I thank the honourable senator for that question. As he knows well, because he has described it, the field of agriculture is a joint responsibility of the federal and provincial governments. Clearly, the provincial governments would have to agree to any system of national standards that would be enforced. However, I can assure him that at the federal level the Minister of Agriculture will be having those discussions. It would not be necessary for the federal government to do the inspections. They could continue to be done at the provincial level, but it would be extremely useful that the standards be national, accepted by all provinces and territories as well as the federal government. As a result of this case, those discussions will take on an urgency. There have been discussions in the past, but, to be fair, there has been no emergency. Now there is.


Allocation of Funds for Canada Day Celebrations

Hon. Gerry St. Germain: Honourable senators, my question is to the Leader of the Government in the Senate and relates to e- mails I have been receiving from Western Canada concerning the allocation of federal funding for Canada Day celebrations. I do not have any documents; I have just been receiving e-mails from irate westerners. Of the $8.3 million, apparently 5.4 went to Quebec; Alberta received 6 per cent, and B.C. 4 per cent. Is this correct?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, yes, it is correct and it is a direct reflection of a higher proportion of applications that came from the province of Quebec for funding for its activities. Unfortunately, for whatever reason, perhaps those other events did not actually make applications, which I know were held in Western Canada because all applications, if they met the criteria, were provided with funding. The vast majority of applications celebrating Canada Day and related days, which also include National Aboriginal Day, came from the province of Quebec.

Senator St. Germain: Honourable senators, I have been involved with Canada Day celebrations in Langley, which have grown from a couple of hundred people to thousands of people. I do not think it is a question of not applying. The question we have, as Westerners, is that requests are submitted for funding and are generally reduced to a percentage of the requested amount. Do the same rules apply out West as they do in Central Canada? It concerns Western Canadians that B.C. would only receive 4 per cent of the total funding. I know that there are huge Canada Day celebrations in the region I represent, and I know that, on occasion, applications have been made for $100,000, to use a figure, and that the funding received is maybe $15,000 or $30,000. Do we receive the same percentage as do the other provinces?

Senator Carstairs: The amount of money received is a direct result of the application that is made in terms of the criteria, which are established straight across the country. They are identical. There is no variation from province to province.


The Hon. the Speaker pro tempore: Honourable senators, the time allocated to Question Period has expired.

Answers to Order Paper Questions Tabled

Human Resources Development Canada—Old Age Security Act

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 111 on the Order Paper—by Senator Stratton.

Heritage—Recognition of Heritage Buildings

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 112 on the Order Paper—by Senator Stratton.

Heritage—National Parks Act and National Marine Conservation Areas Act

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 113 on the Order Paper—by Senator Stratton.

Heritage—Library and Archives of Canada Bill

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 115 on the Order Paper—by Senator Stratton.

Veterans Affairs—Alternative Fuels Act

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Questions Nos. 71 and 72 on the Order Paper—by Senator Kenny.

Foreign Affairs—Alternative Fuels Act

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 85 on the Order Paper—by Senator Kenny.

Revenue Canada—Medical Expenses of Disabled

Hon. Fernand Robichaud (Deputy Leader of the Government) tabled the answer to Question No. 123 on the Order Paper—by Senator Kinsella.


Canadian Environmental Assessment Act

Bill to Amend—Report of Committee Presented

Leave having been given to revert to Presentation of Reports from Standing or Special Committees:

Hon. Tommy Banks, Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources, presented the following report:

Wednesday, June 4, 2003

The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to present its


Your Committee, to which was referred Bill C-9, An Act to amend the Canadian Environmental Assessment Act has, in obedience to the Order of Reference of Tuesday, May 13, 2003, examined the said Bill and now reports the same without amendment.

Respectfully submitted,


The Hon. the Speaker: Honourable senators, when shall this bill br read the third time?

On motion of Senator Kenny, bill placed on Orders of the Day for third reading at the next sitting of the Senate.


Labour Shortages in Skilled Trades

Notice of Inquiry

Leave having been given to revert to Notices of Inquiries:

Hon. Catherine S. Callbeck: Honourable senators, pursuant to rule 57(2), I give notice:

That, on Monday next, June 9, 2003, I will call the attention of the Senate to the crisis of increasing labour shortages in the skilled trades.


Business of the Senate

Hon. Noël A. Kinsella (Deputy Leader of the Opposition): Honourable senators, I understand that, if the government side will agree, as a courtesy to our colleague Senator Andreychuk, we will deal with the matter to which she wishes to speak first.


Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, we agree that Item No. 108 on the Orders of the Day be dealt with now, to accommodate certain senators.


Human Rights

Committee Authorized to Study Legal Issues Affecting On-Reserve Matrimonial Real Property on Breakdown of Marriage or Common-Law Relationship

On the Order:

Resuming debate on the motion of the Honourable Senator Maheu, seconded by the Honourable Senator Bacon:

That the Standing Senate Committee on Human Rights be authorized to examine and report upon key legal issues affecting the subject of on-reserve matrimonial real property on the breakdown of a marriage or common-law relationship and the policy context in which they are situated.

In particular, the Committee shall be authorized to examine:

- The interplay between provincial and federal laws in addressing the division of matrimonial property (both personal and real) on-reserve and, in particular, enforcement of court decisions;

- The practice of land allotment on-reserve, in particular with respect to custom land allotment;

- In a case of marriage or common-law relationships, the status of spouses and how real property is divided on the breakdown of the relationship; and

- Possible solutions that would balance individual and community interest.

That the Committee report to the Senate no later than June 27, 2003;

And on the motion in amendment of the Honourable Senator Carney, P.C., seconded by the Honourable Senator Keon, that the motion be amended in the first paragraph thereof by replacing the words "Standing Senate Committee on Human Rights" by the words "Standing Senate Committee on Aboriginal Peoples"; and

That the reporting date be no later than March 31, 2004 rather than June 27, 2003.—(Honourable Senator Andreychuk).

Hon. A. Raynell Andreychuk: Honourable senators, I thank you for the privilege of being allowed to speak first this afternoon. I will not take more than a few minutes of your time.

This motion seeks to authorize the Standing Senate Committee on Human Rights to study legal issues affecting on-reserve matrimonial real property on the breakdown of a marriage or a common-law relationship. This is not a new issue. The Senate has, in many ways and at various times, pointed out the difficulties with marriage and common-law relationships on reserve. In fact, the government has, on a number of occasions, indicated that it would deal with this issue.

This motion raises the fundamental issue of how to harmonize the collective rights of Canada's Aboriginal peoples as set out in section 25 of the Canadian Charter of Rights and Freedoms and section 35 of the Constitution Act, 1982, with the right to equality owed to all Canadian women and men as protected by section 15 of the Charter.

In the context of the present debate, I want to commend Senator Rossiter for her detailed analysis and her reasoning behind supporting the amendment and, in fact, for raising other options.

While I can support the amendment and, perhaps, some other option in regard to this matter, I simply wanted to put on the record that this is not the time to continue our study of this issue. In fact, this problem is well recognized. The legal issues have already been studied and identified, and human rights aspects have been identified. Therefore, it is time to act, not to study.

To make my point, I will put on the record a few examples of the studies that have been undertaken to date. Those are, first, the report of the Royal Commission on Aboriginal People, 1997; second, a discussion paper entitled "Matrimonial Real Property On Reserve," November 28, 2002, prepared by Cornet Consulting & Mediation, which company, I believe, was engaged by the Government of Canada; third, "Where Are the Women," the report of the Special Representative on the Protection of First Nation Women's Rights, January 12, 2001; fourth, an article entitled "Home/Land" by Mary Ellen Turpel, 1991, in volume 18 of the Canadian Journal of Family Law, at page 17; and, fifth, in 1998, the report of the United Nations Committee on Economic, Social and Cultural Rights noted, with concern, Canada's failure to ensure equal protection of the law between Aboriginal and non-Aboriginal women in respect of matrimonial real property. That is discussed at page 7 of the discussion paper, "Matrimonial Real Property On Reserve."

Honourable senators, I could point to many more articles and reports, both from the Aboriginal community and the Government of Canada. It occurs to me that this is not the time to study. We have the facts. As I have indicated, it is not a legal issue. The legal issues are identified and the consequences of legal positions are known. It is well documented that there is a violation of human rights. There is not equal protection for women on reserve compared to those off reserve.

It has been acknowledged by native leaders that this is one issue they will address, including in the Nisga'a negotiations. The chief, when he came here, said he would address this issue. In my own province, the Aboriginal people have noted this issue, as has the Government of Saskatchewan.

When we were studying Bill C-23 in the Legal Committee, it was noted that it was time to act. There was an undertaking at that time that the government would proceed quickly and that we would look to the Aboriginal community. Therefore, I am puzzled and perplexed and perhaps somewhat distressed that we will delay efforts to defend this fundamental human right. There is nothing more to study. It is time for the political will to act. I think all of us have a fiduciary responsibility not to further delay action. Surely the government has the information.

If the government is not sure about a process and how to deal with the Aboriginal leaders on this issue, it would seem to me that only the Aboriginal Committee would be able to elicit the kinds of testimony and give that kind of advice. I believe, even in that forum, that advice has been given directly to the government by the Aboriginal leaders. I would urge this chamber not to study further, but to recognize and give full effect to our Charter of Rights and Freedoms, and to give the Aboriginal women and men on reserve the same treatment as those of us who are not on reserves.


Hon. Gérald-A. Beaudoin: Honourable senators, I think that there should not be a study on this issue for the reasons cited by my colleague. The issue of gender equality has been studied at length. In addition to section 15 of the Charter of Rights and Freedoms, section 28 also says quite plainly that, notwithstanding everything the Charter of Rights and Freedoms contains, rights must apply equally to men and women.

This is very much the case in constitutional law. I feel that we need not study it any further.


I have always held the opinion, both in the Senate and at the Human Rights Committee, that if this motion were referred to a committee, it should be the Senate Standing Committee on Aboriginal Peoples. Senators could get involved in this committee's work. For this reason, I fully support the comments made by the honourable senator on this very point.


The Hon. the Speaker: Is the house ready for the question?

Hon. Senators: Question!

The Hon. the Speaker: We are on the amendment of Senator Carney. Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: No.

Some Hon. Senators: Yes.

The Hon. the Speaker: I will put the question in a formal way, honourable senators.

Those in favour of the motion in amendment will please say "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: Those opposed to the motion in amendment will please say "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "nays" have it. The motion in amendment is lost, on division.

Is the house ready for the main question?

Hon. Senators: Question!

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Yes.

Some Hon. Senators: No.

The Hon. the Speaker: I will put the question formally.

Those in favour of the motion will please say "yea."

Some Hon. Senators: Yea.

The Hon. the Speaker: Those opposed to the motion will please say "nay."

Some Hon. Senators: Nay.

The Hon. the Speaker: I believe the "yeas" have it. The motion is passed.

Senator Lynch-Staunton: On division.

Motion agreed to, on division.

Budget Implementation Bill, 2003

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Carstairs, P.C., seconded by the Honourable Senator Robichaud, P.C., for the second reading of Bill C- 28, to implement certain provisions of the budget tabled in Parliament on February 18, 2003.

Hon. Roch Bolduc: Honourable senators, Bill C-28 on budget implementation is an omnibus bill of some 135 pages. I will touch briefly on key elements of this bill that for the most part deal with measures announced in last February's budget.


First, it confirms that the new Minister of Finance studied at the same school of accounting as the previous one. We are again being asked to approve spending that has been accounted for in a previous fiscal year, so the government will not spend one cent this year or next year and, in some cases, not for ten years.

Bill C-28 includes spending $1.5 billion for a trust fund for diagnostic and medical equipment, an amount that will appear in last year's books. In 2000, money set aside for a similar trust ended up being used to buy lawn mowers. The government promised safeguards to prevent this type of situation from reoccurring. We will be keeping an eye on the government in this regard.


Bill C-28 allows the government to provide grants of up to $250 million to the Canada Foundation for Sustainable Development Technology; $50 million to the Canadian Foundation for Climate and Atmospheric Sciences; $600 million to the Canada Health Infoway Inc.; $25 million to the Canadian Health Services Research Foundation; $70 million to the Canadian Institute for Health Information; $500 million to the Canada Foundation for Innovation; and $75 million for Genome Canada.

With the exception of the payments to the Canada Foundation for Sustainable Development Technology, everything is to be booked to 2002-03. Magically, the net accounting result is to whittle down last year's surplus to zero.

The Auditor General raised several concerns regarding the use of foundations in her April 2002 report. In response to one of her concerns, Bill C-28 does require that, should they ever be wound down, any unspent funds be returned to the government from the Canada Foundation for Innovation, the Canada Millennium Scholarship Foundation and the Canada Foundation for Sustainable Development Technology. That should have been part of the criteria from day one.

However, the government has rejected her concerns about how it accounts for payments to the foundations. It prefers to keep cooking the books.


Bill C-28 contains two measures that relate to employment insurance.

First, it provides for the payment of new benefits during a maximum of six weeks to people providing care to a seriously ill family member expected to die within 26 weeks. We welcome this measure warmly.

Second, Bill C-29 sets the EI contribution rate for 2004 at $1.98. This is the third year in a row that the government has ignored the requirement that the condition of the employment insurance account be considered before the contribution rate is set.

The government claims that the $1.98 rate represents the break- even point for 2004, that is, the difference between what it costs and what is spent. It is, in fact, a reduction in benefits. It is correct only if we do not take into account the interest on the surplus in the EI fund; if we did, the contribution rate would be closer to $1.75, all of 20 cents less.

The government continues to maintain premiums at an artificially high level, which keeps the cumulative EI surplus growing.

The government believes that setting the rates by legislation for yet another year will give it the time to hold consultations on setting the rate in future years, even though it seems to have already decided to simply ignore the surplus in the EI account. The government has been studying this measure for four years now and apparently further study is needed. It appears to be very complicated. And yet a number of actuaries have already answered the question.

Honourable senators, three years ago, the government took it upon itself to set the annual contribution rate, something that used to be done to the Employment Insurance Commission, an independent body. It justified this by saying that it wanted to study the method for setting the rate. How much longer will it study the matter?

I cannot see it as anything but a delaying tactic designed to allow the government to accumulate funds under the employment insurance program, while it tries to find a legal way to hang on to the $50 billion it has taken from Canadian workers and employers.

Also, honourable senators, Bill C-28 increases federal transfer payments.

In 1993, the federal government made transfer payments of approximately $19 billion in cash to the provinces under the Canada Assistance Plan, also called Established Programs Financing. Paul Martin merged these two programs into a single Canada Health and Social Transfer, and he cut total transfer payments by $12.5 billion in 1996.

Despite the surpluses announced since 1997, it was not until 2002 that the transfer payments were higher than they had been when the current government came to power. For nine years, the federal government slashed transfer payments to the provinces, which then had to cut health services by forcing doctors, nurses and other health care professionals into retirement, for instance. Patients were then faced with growing waiting lists.

The purpose of this bill is to split the CHST into two separate transfer payments and to create a health care reform fund, so that transfer payments will reach $28 billion in 2007.

This is approximately the amount that transfer payments would have been if they had, back in 1993, simply been indexed to inflation and population growth.

Furthermore, while the government is busy congratulating itself in this budget and telling us how much it intends to spend in each fiscal year until 2010, it has no mandate past 2007. This bill makes no long-term commitments in health and education. The provinces, which are already making substantial arguments about their fiscal capacity, could well find themselves high and dry in five years.

In the meantime, the Prime Minister is lecturing the President of the United States.


Bill C-28 also removes the ceiling on equalization payments to the provinces. If the rumours are true and the Prime Minister is thinking about proroguing Parliament in the fall, and if the new Prime Minister intends to call an election shortly after being chosen, it might be good to remember that the Equalization Program will expire next March 31, unless Parliament passes legislation to renew it.


Bill C-28 reduces the air travellers' security charges to $7 from $12 for domestic travel.

This tax was announced in 2001 to pay for airport security. It has been controversial from day one, both because of its impact on air travel, and because the government is reluctant to give us any accounting of how the money is being spent. Nothing in this bill will force the government to give us that proper accounting.

Bill C-28 will increase the National Child Benefit Supplement paid to low-income families by up to an additional $185 per child, reaching more than $5,000 for a low-income family with three children. This is in addition to the Canada Child Tax Benefit. As you can see, I am an objective man, and I have always been an objective man.

Bill C-28 will also create an annual Child Disability Benefit of $1,600 per child for low-income families with disabled children. The first payment of the child disability payment will not actually be made until March 2004, at which point those who are eligible will receive benefits retroactive to July 2003.

The government says that this nine-month payment delay is due to the Canada Customs and Revenue Agency needing time to set everything up. However, by coincidence, there may be an election called around March of 2004.

It is not difficult to imagine the advertising campaign that will accompany the issuance of the first cheques which, because they will be retroactive, will be for about $1,200. Do honourable senators remember, as I do, the conception of family allowances in 1945? Mackenzie King went to Quebec City and won the whole province with that promise. This is what we call "achat de vote."

I would draw to your attention two details about these credits. First, there is a little matter of accounting. While the government says that this represents tax relief, the Auditor General is adamant that payment of this kind of expenditure ought to be booked as increased spending rather than as reduced revenue. There is a big difference between those two. Second, to make the benefits as generous as possible, the government claws them back as stiffly as possible, as much as one-third if you have three or more children.

When you start to combine this bill with all other taxes and clawbacks faced by low- and modest-income Canadians, the result can be bizarre. In most cases, the rather stiff clawbacks that accompany the Child Benefit Supplement and the Child Disability Benefit mean that they are no longer a benefit by the time a family reaches the middle-income bracket. This means that they are gone by the time the government starts clawing back the other income- tested benefits available under the GST credit and on the regular Canada Child Tax Benefit. That is not the case if one of your three children is disabled. It is not the case if you have four or more able-bodied children.

To provide the Leader of the Government with an illustration, consider the case of a single mother in her home province of Manitoba, with three children, of whom two are disabled. She makes $35,000 a year and is given the chance to earn an extra $1,000. On that $1,000, she will pay federal taxes of $220, provincial tax on taxable income of $149. Her Manitoba family tax reduction will be clawed back $10. Her GST credit will be clawed back $50. Her National Child Benefit and the Child Disability Benefit will be clawed back $321. Her Canada Child Tax Benefit will be clawed back $50 while, net of the federal and provincial tax credits, she will pay $15 in EI premiums and contribute $36 to the CPP. This all adds up to $851, an effective marginal tax rate of 85 per cent. That is what it is.

Some Hon. Senators: Oh, oh!

Senator Bolduc: We call that compassionate government. How about that?

Some Hon. Senators: Hear, hear!

Senator Bolduc: If she has to pay child care, it will cost her money to work. Where is the incentive to work and to improve your personal standard of living in all of this? What is the social justice of an 85 per cent tax rate at $35,000 of income? What is the logic of it?

Bill C-28 will undo a March 2002 court decision that extended the disability tax credit to those who spend an inordinate amount of time shopping or preparing food because of a dietary condition. I would not be surprised if we receive representation about this in committee.

Under existing legislation, the dollar limit for RRSPs was to rise from $13,500 this year to $15,500 in 2005. Instead, Bill C-28 raises the limit to $18,000, with future years to be indexed.

The RRSP limit was already $15,500 before Paul Martin reduced it to $13,500 in his 1995 budget. Without that reduction, indexing would have brought the limit to $18,000 by 2006 in any event. What we are really doing in this bill is undoing Mr. Martin's budget change of eight years ago.

There is no change in the rule that limits contributions to 18 per cent of earned income. As such, there has been criticism that the $18,000 annual limit will only apply to those with incomes above $100,000.

There are several relieving tax measures in this budget that are, of course, welcome, including the capital gains rollover, the list of medical expenses, RRSP rollovers, the reduction in the small business tax rate, the elimination of capital tax, the mineral exploration the tax credit, and an increase in the film or video production service tax credit.

This tax relief, however, is somewhat limited and does nothing to lower taxes for middle-income Canadians.


Bill C-28 also makes a few changes to the excise tax and the sales tax. I would like to say a few words about one of the changes.

A few years ago, a court ruled against the government in the matter of GST rebates for the provision of school transportation services. The explanation is very technical, but I will do my best to simplify it.

It was a question of determining whether there should be full GST rebate because school transportation services are taxable, or a 68 per cent rebate, which is the rate for organizations that provide public services.

A group of 29 school boards in Quebec challenged the 68 per cent rebate. The Federal Court ruled unanimously in their favour in the case that is now known as the des Chênes case.

Many other school boards, not only in Quebec, but also in Ontario, Manitoba and the Maritime Provinces waited to see how the des Chênes case would unfold before initiating their own legal challenges.

Once the Federal Court had ruled, the other school boards filed suit against the government, who submitted that the facts were not what the school boards had presented. An out-of-court settlement was reached in good faith whereby the second group of school boards would benefit from the same advantages as the first, provided the facts were the same. The case was never brought before the Federal Court. However, a settlement was reached by the government and the government lawyers, who said this was manageable.

A few weeks later, the last Friday before Christmas 2001, the government announced that it would pass legislation confirming that a full rebate would apply only to cases that had been decided in Federal Court — too bad for the others. Average Canadians believe the government. I have worked with many businessmen and when they dealt with government officials, they took them at their word. Sometimes the government retracts. This is rather unseemly, and it makes people cynical.

Moreover, the government announced that the legislation would apply retroactively to 1990, when the GST was implemented, so that no one else can take advantage of a full rebate.


Honourable senators, this measure raises some serious problems. These will, of course, be studied in committee, but this measure makes no sense, in my opinion. I have examined the issue closely. We have some very good lawyers — including a former Liberal finance minister — who will be presenting a brief.

The school boards with which the government had negotiated a settlement are not targeted by Bill C-28. This legislation clearly indicates to anyone intending to negotiate a settlement with the government on anything to do with taxes to just forget it; the government might very well not negotiate in good faith; it is preferable to go to court and obtain a ruling there.

As well, we are going to create different taxation rules for different school boards, regardless of whether or not they were covered by the 1991 ruling on a tax case. This is an aberrant lack of consistency as far as tax policy is concerned.

In my opinion, certain persons in the Department of Finance wanted to take a shortcut in the name of efficiency. How ridiculous, to save a few million dollars but end up with a whole series of public bodies and elected representatives in Quebec, Ontario, the Maritimes and Manitoba on your back. I find this action somewhat ill-advised.

This is clearly a bureaucratic mistake. I doubt that the minister is responsible. He does not have the time to deal with this kind of problem. This bureaucratic mistake must be corrected.

In the Senate, we are not in a position to change the budget. However, we can vote with sufficient force so that the House of Commons does rectify the situation.

When the government announces a change to tax law, this change usually enters into force on the date on which or in the year in which it is proclaimed. Here, we are being asked to pass legislation that will be retroactive as far back as thirteen years.

Upon closer examination, the minister, a trained lawyer, will very quickly realize that this measure must be changed.

In the past, the Honourable Minister MacEachen was able to make some fifteen amendments to his budget. I presume that the Honourable Minister Manley can do the same.

What should we expect from now on? Should we expect to see retroactive changes to the Income Tax Act to account for the 1971 Benson reforms? Should we expect changes to the Act dating back to 1917, during the First World War? Anything is possible.


Honourable senators, Bill C-28 eliminates the Debt Servicing and Reduction Account, meaning that it will no longer be law that all net GST monies go toward debt servicing and reduction. I seem to recall that the government came to office promising to scrap the GST, not the Debt Servicing and Reduction Account.

Finally, in this vein, I would like to point out that the tax reduction that we have seen to date has largely been by accident. It was not planned. Indeed, it is due entirely to the $50 billion the government has collected in extra payroll taxes and to the cumulative total of more than $20 billion that Paul Martin took out of the transfers to the provinces.

Senator Robichaud: It was good management.


Senator Bolduc: It is not partisan.


The Hon. the Speaker: Is the Senate ready for the question?

Hon. Senators: Question.

The Hon. the Speaker: It was moved by the Honourable Senator Carstairs, seconded by the Honourable Senator Robichaud, that this bill be read the second time now. Is it your pleasure, honourable senators, to adopt the motion?

Motion agreed to and bill read second time.

Referred to Committee

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

Hon. Sharon Carstairs (Leader of the Government): Honourable senators, I move that Bill C-28 be referred to the Standing Senate Committee on National Finance.

Hon. Lowell Murray: If this motion passes, honourable senators, the Standing Senate Committee on National Finance will meet to study this bill Tuesday next at 9:30 a.m. and again on Wednesday at 6:15 in the evening. In anticipation of this decision, we have already given a tentative advisory to the witnesses who will be coming.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Motion agreed to.

Legal and Constitutional Affairs

Motion to Authorize Committee to Study Including in Legislation Non-Derogation Clauses Relating to Aboriginal Treaty Rights—Debate Adjourned

Hon. Sharon Carstairs (Leader of the Government), pursuant to notice of June 3, 2003, moved:

That the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the implications of including, in legislation, non- derogation clauses relating to existing aboriginal and treaty rights of the aboriginal peoples of Canada under s. 35 of the Constitution Act, 1982; and

That the Committee present its report no later than December 31, 2003.

She said: Honourable senators, I am delighted today to propose this motion because it is this chamber at its committees that have provided a forum for many discussions and debates on non- derogation.

Over the last couple of years, discussion on non-derogation was specific to a particular piece of legislation being examined. I believe it is now time to remove this discussion from debate on a bill and let it stand alone for debate on its own merits.

The Senate has a long history of examining non-derogation clauses — their inclusion and exclusion and the subsequent effect in a particular bill. Given the frequency of our discussions on this issue, I am pleased to affirm that the government supports a broadened discussion of the whole of the non-derogation clause. To that end, I am proposing that the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine the effect of including non-derogation clauses in legislation.

Existing Aboriginal and treaty rights of our Aboriginal people are protected under section 35 of the Constitution Act, 1982. The concern that has been consistently raised is the need to find language that reminds the court that simple legislation is subordinate to section 35.

There are multiple versions of non-derogation clauses already in statute. Since 1985, beginning with the Canada Petroleum Resources Act, there have been four different wordings used for non-derogation provisions in federal legislation. This does not include the new wording in Bill C-10B we passed last week.

From 1994 until the present, three different wordings have been used for non-derogation provisions. In 1998, the language of non- derogation clauses was revised, apparently to provide for greater clarity. The so-called new non-derogation clause formulation was supposed to more clearly show that this kind of provision is not to be interpreted as affecting a substantive change to the degree of protection provided by section 35 of the Constitution Act, but that it instead should be viewed as declaratory only. This change gave our Aboriginal senators considerable concern, as well as non-Aboriginal senators. It is fair to say that it was the Aboriginal senators who first brought it to our attention.

This chamber has seen senators taking an increasing interest in the non-derogation clause. Since 2001, beginning with Bill C-33, the Nunavut Waters and Nunavut Surface Rights Tribunal Act, senators questioned the wording of non-derogation provisions in federal legislation. In some instances, legislation was amended to remove the non-derogation clause. In others, senators supported the passing of the bill with the clause included. Most recently, the Senate amended, as I indicated earlier, Bill C-10B — cruelty to animals — by adding a provision to the bill that addresses the rights of Aboriginal persons.

Interestingly, this latest development is a completely new approach to this idea of protecting Aboriginal rights in federal statutes. If you will, it is a fifth wording, and perhaps a totally different approach, one that is also worthy of the consideration of the committee.

The committee will be instrumental in finding language that is clear and confirms the principal authority of section 35 of the Constitution Act, and serves neither to diminish nor to enhance Aboriginal rights. I hope the Standing Senate Committee on Legal and Constitutional Affairs will study the broad issue of non-derogation clauses and will not be limited to studying the matter solely in relation to a specific bill, as unfortunately has been the case in the past. I am confident that the committee, through this kind of study, will report a solution that satisfies all concerned.

Hon. Anne C. Cools: Would the honourable senator take a question?

Senator Carstairs: Of course.

Senator Cools: I observe that the motion is to refer the subject matter to the Standing Senate Committee on Legal and Constitutional Affairs.


I am also aware that there are no Aboriginal members on the Standing Senate Committee on Legal and Constitutional Affairs. Could the leader tell us if it would be her intention to create, on that committee, a membership spot for an Aboriginal senator?

Senator Carstairs: With the greatest respect and knowing the Rules of the Senate as the honourable does, she knows that I cannot create a spot on the committee. It would be my hope that the Aboriginal senators would attend this committee on a regular basis. Should a member be unable to attend a particular meeting, we could replace that senator with one of our Aboriginal senators. Obviously, I cannot replace senators of the other side, nor would I choose to do so.

Honourable senators, if one of our senators chose to step aside for the duration of this study and give his or her place to a member of the Aboriginal membership of the Senate, I would be pleased.

Senator Cools: Honourable senators, it is my experience that the leadership can perform magic in respect of membership on committees. They can make memberships on committees appear, disappear and reappear. If this particular committee does not have as a standing feature membership of our Aboriginal colleagues, perhaps a better technique would be to create a special committee to study the subject-matter that would include, automatically, properly, formally and entirely the Aboriginal members of the Senate.

Senator Carstairs: Honourable senators, Aboriginal senators were consulted on this matter. They chose to have the matter referred to the Standing Senate Committee on Legal and Constitutional Affairs. They recognize the expertise on that committee. They further recognize their right as ordinary senators to attend any committee that they choose to attend.

Senator Cools: Honourable senators, since I wish to participate in this debate, I will ask that the debate be adjourned in my name when honourable senators have completed their questions.


Hon. Pierre Claude Nolin: Honourable senators, I am very interested in this proposal. Our colleagues should understand that every time we are confronted with this issue at the Legal and Constitutional Affairs Committee, our objective is not to reiterate what the Constitution says.

The Constitution Act, 1982 recognizes these rights. The legal profession is always confronted with determining whether we should reiterate what the Constitution says.

Unfortunately, we always come to the following conclusion: normally, we should not be required to spell it out in legislation. Administrative practice is such that the courts must establish the rights instead of them being recognized from the outset by the administration. We have reached the point where we would like the administration to recognize these rights a priori rather than wait for the court to recognize them a posteriori.

You are asking whether we should recognize — I want to quote your exact words:

— examine, for reporting purposes, the consequences of inclusion —

I just want to understand if that is really your objective. If the importance of this inclusion is to repeat what the Constitution tells us, that is one thing; the inclusion of this section in a law whose purpose is to ensure that recognition of these rights is taken into consideration by the administration in enforcing the law in question is quite another; Bill C-10B is a very good example of that.

Do you recognize that the administration must take into account the existence of ancestral rights a priori rather than a posteriori?

A posteriori, we are forcing Canada's Aboriginal communities to go back to square one each time. That is especially true for the Metis, because we are only just beginning to recognize their rights. The Supreme Court has been seized with the question of recognizing Metis ancestral rights with regard to hunting, and that is just the beginning. In moving this motion, do you recognize that is it appropriate to include these sections in order to ensure that the ancestral rights of Canada's Aboriginal communities are taken into consideration a priori when the provisions of specific legislation are enforced?


Senator Carstairs: I thank the honourable senator for his question. He has identified serious issues. I do not wish to prejudge any of the consequences of the decisions that are made by the committee, however, I can say that some legal experts have indicated that they believe the solution to this is the placing of specific wording, which can be agreed to by our Aboriginal people and non-Aboriginal people alike, in the Interpretation Act, whereby every act must be interpreted in accordance with the wording chosen.

Honourable senators, it is clear to me that there is no sense of comfort among our Aboriginal peoples that section 35 is taken into consideration each time a bill that could impact on the Aboriginal peoples is studied either here or outside of a legislative chamber. That is what caused them certain unease. That is why, honourable senators, we included this wording in Bill C-68, the gun control legislation, and that is why it has been included in other bills.

Unfortunately, my further concern at present is, if we have, say, five different versions of the wording, what will be the judgment of the court on this? Will they say: "The governments do not know what they are saying about Aboriginal peoples and their rights. Does this in any way derogate their rights?" I recognize that the Constitution stands alone, and nothing can derogate from the Constitution.

Where do these various interpretations leave our Aboriginal people? In our study we must ensure that we carefully examine all of those issues so that we can give advice to the government as to what they should do with respect to non-derogation clauses.

Senator Nolin: Honourable senators, can we agree that there is no need to amend the bill? The courts will recognize the Constitution. In the course of the application of the new law, they will recognize the existence of a right.

We came to the conclusion that the problem raised in Bill C-68 and the aftermath of the implementation of Bill C-68 had to be dealt with in Bill C-10B. We decided to go a little further and ask, "Why do we not now enshrine in the law a mechanism that binds not only the courts but also the administrators of the law to recognize those rights at the beginning, not at the end?"

Some have argued that the Constitution is already in place so we need not amend the law. The Constitution applies to all laws. It is not necessary to amend the Interpretation Act of Canada. The Constitution is there to be read and understood by all. However, that is not what we want. We want it to be clearly understood at the outset. We do not want the administration to suggest that the court should decide whether Aboriginal people have a certain right or not. That is not good enough.

In 1982, we recognized the existence of those rights. We want the existence of those rights to be recognized at the beginning of the application of a law, not at the end.


If the intent of the motion were to bring colleagues together to reflect on how best to amend the law so that all of those rights are applicable to every law at the beginning of that application and not at the end, then I would say yes. However, if the intent of the motion is to only reflect on the need to amend the Interpretation Act, then my honest answer is that we do not need that. We have the Constitution and so we do not need to amend the Interpretation Act. However, if its intent is to surgically carve, as we tried with Bill C-10B, an amendment that forces a judge to take into consideration, before issuing a warrant, the possible existence of such a right, some members of the committee had exactly that in mind when we agreed to the amendment.

Senator Carstairs: The honourable senator has expressed it much better than I could have done. That is exactly what we must do. It is, obviously, in the Constitution; that we accept. However, it is not so obvious, and Senator Nolin identified this, whether someone administering the law way below the court level is taking that into consideration. That must be the basis of our study because, if we are to include the understanding of section 35 in the interpretation as the administrators go through that interpretation, then that is of significance to us.

I regret that it has taken us this long to begin this study. This will not be a simple study; it will test the mettle of all senators who sit on this committee. Since 1982, we have handled this issue in different ways. Our Aboriginal people would say that their needs and aspirations have often not been taken into consideration in the administration of the law, and that must change.

Senator Nolin: To use Bill C-10B as an example again, if a peace officer were empowered to apply the law in a specific district, we think that he or she should know that some people have certain rights and other people have other rights, including Aboriginal people. When we drafted that amendment, we did not want that peace officer to say, "We will let the courts decide whether you have those rights." That was unacceptable. If the Constitution has enshrined the existence of those rights, then they must be recognized at the outset for all. A recognized right is not only for the future but also for the present. The administration should instruct those who are empowered to apply the law to recognize those rights.

Looking at the situation through the opposite lens, we would assume that Aboriginals have those rights, rather than assume they do not have those rights, thereby forcing them to go to court to convince us otherwise. That is the dilemma we were facing.

I will support such a motion as long as we understand that that is precisely what we want to achieve.


Hon. Gérald-A. Beaudoin: Honourable senators, I congratulate Senator Carstairs for raising such an important issue, and one we have been talking about for years in the Senate. Aboriginal peoples themselves have been talking about this for a very long time. I wanted to make sure that you wanted a study to be done not just on the procedural level, but also as pertains to content. This is one of the rare cases in Canada's Constitution that deals with collective rights. Section 35 refers to collective rights. The only other section I am aware of in Canada's Constitution that refers to collective rights is section 93. It no longer applies to Quebec; the same is true for Newfoundland.

I would like to be sure that this study covers procedure, content and the administration of justice. I think that that is what must be done. I imagine that the Senate Standing Committee on Legal and Constitutional Affairs has the power to define its own mandate on this important issue.


Senator Carstairs: Honourable senators, the committee will establish its mandate to discuss what it wants to discuss and to report what it wants to report. I was careful to keep the wording as tightly framed as possible so that the committee would have no limitations on what it should do. I do not think the study would be of any value if it were not fulsome.

Hon. Lowell Murray: Honourable senators, without the benefit of having section 35 before me, I do have a fair idea about what it says.

I am not a member of the Standing Senate Committee on Legal and Constitutional Affairs. Although I know that all honourable senators have the right to attend, it is unlikely that I would be able to do so consistently. It seems that we have come some distance from the Constitution Act, 1982. I am hopeful that, in the course of this debate, at committee or in debate that will follow the tabling of the committee's report, we will hear from senators present today who were involved in the 1982 exercise. Senator Joyal participated as the co-chair of the joint committee that studied the Charter. Senator Kirby participated as the principal adviser to then Prime Minister Trudeau. Senator Buchanan was then Premier of Nova Scotia. A number of honourable senators were intimately involved in that process.

In 1982, we did affirm the Aboriginal and treaty rights of the Aboriginal peoples of Canada. There was a companion provision, which resulted in a series of constitutional conferences to define those rights. Those three constitutional conferences, one under former Prime Minister Trudeau's chairmanship and two under the chairmanship of former Prime Minister Mulroney, all failed to achieve the desired result.

The next step in the Charlottetown Accord of 1992 was the affirmation of the "inherent right" to self-government of the Aboriginal peoples. That concept was reaffirmed not long after the swearing in of the current government by the then Minister of Indian Affairs. That concept itself, it seems to me, would require further definition.

Since that time, and Senator Nolin described the development quite well, we have had a variety of non-derogation clauses, some before and some after the fact of legislation. Now it is being suggested that the committee should examine and report upon the implications of including, in legislation, non-derogation clauses relating to existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, under section 35. I would parenthetically remark that we entrenched the Nisga'a treaty, if that is what it is, under section 35. That was the most recent development.


I would seek the opinion of the committee on the implications of including, in legislation, non-derogation clauses relating to existing Aboriginal and treaty rights. Are we giving up on defining Aboriginal and treaty rights more precisely? Is this some kind of backhanded way of doing it, by indirection or in a negative way?

Hon. Fernand Robichaud (Deputy Leader of the Government): On a point of order, I do not think senators can hear what the senator is saying because he is standing too far in front of the microphone.

Senator Murray: Did the Hansard reporter hear me? I do not know that what I was saying is particularly grave. The real question is: What is intended by this move? Are we now trying by indirection or in some backhanded way to do what we could not do directly, which is to define and, indeed, reach an agreement with the Aboriginal peoples, four of whose organizations were at the table on all the occasions that Mr. Trudeau and Mr. Mulroney convened the conferences? Are we trying to do by indirection what we could not do directly and, if so, is that such a good idea? At some point, I would like to hear from others who have more knowledge of these issues than I do. I am, dare I say, in need of clarity.

Hon. Charlie Watt: Honourable senators, I am not entirely sure whether Senator Murray was attempting to put that forward as a question to the leader. Would the leader take this opportunity to respond?

Senator Carstairs: Honourable senators, I listened carefully to Senator Murray's words. He said he was making some comments. He did not say he was asking a question, and therefore I did not respond.

He is raising issues that need to be addressed in committee, and that is why I am reluctant to respond. I do not have a position, frankly, on where I want the committee to go on this. I want the committee to make that determination. I do not want to set the stage in any way regarding what conclusions they should reach.

Senator Watt: Honourable senators, I congratulate our leader, Senator Carstairs, for having the courage to raise this matter.

Some Hon. Senators: Hear, hear!

Senator Watt: As I have said a number of times in the past, I believe it is long overdue. Like Senator Nolin, I do have some concerns in this regard. When we are asked to vote on the motion to study the implications of including this in legislation, I will be bound to say that I think it is somewhat broad. I understand that it was tabled in this fashion because of the uncertainty and the lack of definition as it relates to the recognition in the highest law of the land, the Constitution Act, 1982.

Senator Murray and I have been involved in dealing with this section 35 and section 25, and specifically what is meant to be the seal of section 35. I attended the last first ministers conference, but not in the same capacity as I was in the earlier years when Brian Mulroney was trying to expedite matters. He was unsuccessful on the two occasions that Senator Murray highlighted.

I was involved in the negotiations leading up to 1982, when it was fully recognized that this was and is unfinished business. We made a every attempt to define it further so the administrators would have clearer information to deal with certain subject matters when drafting legislation.

My question is similar to the one asked by Senator Nolin. It is not our intention to question sections 25 and 35 of the Constitution Act, 1982. Our concern is whether we need to include a reminder whenever legislation is passed that affects and impacts upon Aboriginal people. If we do not do that, it raises the question of whether what is already in the Constitution will be considered. For this reason, we are playing around with the idea of whether we should come up with a stand-alone statute to help and guide us in our deliberations in dealing with bills, or whether we should retain the status quo and continue to insert a non- derogation clause in every bill, especially when we recognize that the livelihood of people will be affected.

Since 1995, I have operated in this assembly most uncomfortably, knowing that the lives of my people, the lives of the people I represent, are very different from the lives of those in the south — economically, their social lives, their education, indeed, every aspect of their lives. I do not appreciate being a member of this place and witnessing, with my own eyes, laws being enacted which are slowly but surely eating away at what I consider the most important thing to Aboriginal peoples. You have your rights. We have only one right, and that is the constitutional rights of the Aboriginal people. We have nothing else.

I will continue to raise this most important matter. We have the right to live as Aboriginal people. It may not be your intention, but I do believe the system at times pushes legislation forward without taking into consideration the impact it will have on the little people below. This is why I appreciate the opportunity to raise this important matter and the fact that our leadership is dealing with it in this fashion today.

I hope the committee will consider the question of whether we accept that the rights of Aboriginal people should have an impact on the general public in Canadian society. We are here. We are not going anywhere. From time to time, there may have to be compromises between the two races, the two peoples. I do not like to say this, but at times I have to throw it at you: We have rights you do not have. That is a reality. That is what constitutional recognition is all about. Some people might ask why we should have rights that they do not have. The fact is we were here before you, and the Constitution recognizes that fact, and it has been accepted and acknowledged by the general public of Canada. Let it be. Let us move forward.


Hon. George Baker: Honourable senators, I observed Senator Watt for many days in the Standing Senate Committee on Legal and Constitutional Affairs. I think his reaction to the most recent legislation was brought on by the lead counsel for the Department of Justice, who stated quite emphatically in response to a question from Senator Watt that there are not two standards under this bill and that the bill applies equally — no matter where one lives in Canada. Of course, Senator Watt was concerned because other pieces of legislation that have gone through Parliament — for example, the marine mammals regulations under the Fisheries Act — exclude beneficiaries. Beneficiaries are defined as those people covered by the James Bay agreement, by the Nunavut agreement and so on. These are negotiated agreements. Dealing with fisheries, the regulations and the act state explicitly that we are not allowed to kill white coat seals and sell their pelts. People in Newfoundland, Nova Scotia and P.E.I. are not allowed, but beneficiaries under those agreements are, and so they should be.

I have seen two pieces of legislation dealing with marine mammals in which representatives from the Department of Justice said no, all of these rules apply to everyone, no matter where they live in Canada. Well, people were in quite a spot because they would then be subjected to animal rights groups all over the country and all over the world wanting to prosecute them under the Criminal Code. Here was a new avenue now to bring them into court and put them in jail. They could not do it under the existing law. Why? Because beneficiaries were excluded from the provisions of the act that stated that one cannot sell, trade or barter in white coats or blue backs. Here they were in a difficult situation, so they asked the Department of Justice, "What about us?" The Department of Justice said, no, everyone is to be treated the same.

Senator Nolin: Find out when you get into court.

Senator Baker: That was the reaction.

We have the protection of our legal system in Canada. It is called prosecutorial discretion, and we use that discretion in a court of law. Never mind that you get charged or thrown in jail for doing something. You will find out in court, after you spend a lot of money on a lawyer probably confronting Clayton Ruby. I do not know where you would dig up that kind of money. That is what they will be confronted with.

What are the Senate, the House of Commons and the Parliament of Canada confronted with now? We have to make up our minds. People have to make up their minds. Must we, in each piece of legislation, do as was done in the Fisheries Act, under the regulations and in other pieces of legislation? Must we draw a recognition to what is actually in the Constitution?

I think the Leader of the Government should be congratulated for bringing this motion forward. I think we have the right group of people on that committee at the right time with the expertise to deal with that problem so that Senator Adams does not have to go to the committee, as he has done many times, and put forward that this is just not fair. It goes to the very fairness of our judicial system in this country to have to be brought into court when it should have been excluded right from the very beginning.

I think that Senator Watt and Senator Adams are absolutely correct in asking for this study, and I am sure that the committee will do justice to it.

Hon. Serge Joyal: Honourable senators, I cannot resist an invitation from our colleague Senator Murray to say a few words on this motion that I support totally for many reasons.

The first reason is that, as Senator Murray has said, we are dealing here with unfinished business. There is no question about that. When we entrenched Aboriginal rights in 1982, that concept was still very vague. The concept of self-government was not even the topic of common discussion. It was mentioned, but no one knew exactly what it meant. I see Senator Watt saying yes to this, and he will remember the discussions we had at that time.

The problem we face with the rights of Aboriginal peoples is complex. Try to imagine that in the Constitution we have recognized linguistic equality — and our colleague Senator Gauthier will certainly concur in the importance of that recognition — but that there is no mechanism to implement respect for that principle on a daily basis, like we have had with the official languages commissioner for more than 20 years.

Where are we? We have left the Aboriginal peoples with the responsibility, first, to define their rights by themselves. Most of the time we have fought them in court with a battery of lawyers, starting with the Department of Justice. Second, when the issue was not that clear, we sometimes contributed to make it unclear. The reason we have different non-derogation clauses is because following a judgment of the court, the Department of Justice decided to review the non-derogation clause of section 35 and come forward with different wording. The problem was not created by the Aboriginal people themselves. The problem was created by us. The problem is expanded by the fact that the administration, generally, as Senator Nolin has said, has not a clear idea of what their obligation is when it drafts legislation that might impact or impinge upon the rights of the Aboriginal peoples.

There have been judgments in the Supreme Court of Canada. The Sparrow judgment was, in my opinion, quite clear regarding the obligation that the administration has when it proposes legislation. There are three criteria. They first have to consult formally with the Aboriginal people. In the bill that Senator Nolin mentioned, Bill C-10B, it was quite clear on the record that the Assistant Deputy Minister of Justice said he did not consult formally with the Aboriginal people. Second, they have to adopt the least harmful solution to the proposal in question. Third, they have to compensate the Aboriginal people.

Put yourselves in the shoes of an Aboriginal person. In all steps of the development of the policy, they have to fight. While they are fighting, we tell them, "Well, you have the Constitution; go to court." We all know what it means when they go to court. They get different judgments. There was a case two years ago in the Court of Appeal of Ontario, the famous Powley decision. I see Senator Chalifoux, a Metis person, who was involved in that judgment.

The court has been very clear on the interpretation of section 35. It has said that entrenching section 35 in the Constitution of 1982 did two fundamental things. The first was that it recognized that Aboriginal people have rights that pre-existed the rights of the European settlers. They have rights that predate the rights of Senator Murray, Senator Jaffer, myself, Senator Austin and any of the other senators in this room who are non-Aboriginal senators. In other words, before our ancestors arrived, mine and Senator Austin's, there were people here with rights. They were organized in a society. They had a culture, religions. They had a kind of government that was their own. They had traditions. They had the structure of a comprehensive society.


The first objective in 1982 was to recognize that Aboriginal people had pre-existing rights. The second objective was to protect and recognize those rights — not to diminish them, not to lead them progressively through all kinds of legislation and regulations. That is what we wanted to do when we entrenched section 35.

Twenty-one years after patriation, we find ourselves still struggling to discover what kind of procedure the administration must follow when it deals with an issue that touches upon Aboriginal peoples' rights — that is, their way of living, their way of governing, their way of being — as Canadians different from us.

After 21 years we find ourselves with five different interpretations of the non-derogation clause — not because they asked for it, most of the time, but because it was imposed on them.

We have to define first — and I endorse Senator Nolin's approach — the government's responsibility in relation to drafting legislation because we are dealing here with a clause that we find in various statutes. Before we come to the conclusion that we should include that clause in the legislation, we must consider how we draft legislation. How do we approach legislation where Aboriginal people have an interest? That is the first step. The second step is to ask ourselves, "Does that legislation impinge on constitutionally protected rights?" They have certain rights that we do not have, and they have the right to be who they are.

Honourable senators, this is not an easy issue. I say quite frankly to Senator Murray: The political process has not worked well. We remain in a culture of confrontation between a minority in Canada and the rest of Canada through its governments. It is not an easy job for an Aboriginal person, coming from hundreds of years of reserve history, of acculturation, of conflict of civilizations, to come forward now in this chamber and say, "You have a responsibility. We share this land. How can we share it in a way that we can continue to grow and protect our fundamental identity as Aboriginal persons?" Senator Watt tells us that the only thing they have is their identity. They count on us to ensure that they can protect that entity and thrive with that identity within the Canadian framework of legislation.

This is not an easy job, honourable senators. It is left to the courts. The courts have done more for the protection of Aboriginal people than many of the politicians in the history of Canada. Why is that so? Aboriginal people have relied essentially on the protection of section 35. That is their only safeguard. That is why they ask us today to help them to identify how we can use that section to protect them in future legislative activities that are the daily bread of this chamber.

Honourable senators, all of us are called upon to use the reserve of our knowledge, the reserve of our sensitivity to recognize the unique role and function that we have in this chamber to question the status and rights of Aboriginal people and how far we can go. It is not to tell them, "If you are not happy, go to court." As fiduciary trustees of Aboriginal rights, to do so would be a shirking of our responsibility. That is what the Supreme Court said last December in the Wewaykum Indian Band decision.

We owe a trustee relationship to the Aboriginal people. Imagine that you are the trustee of a group of people. You cannot say, "Well, try to do your best and let me know one day if it works or not." We have to help them achieve the full recognition of their status. The role of the government today is to call upon us to do our best to ensure that we propose to the government the approach, as Senator Nolin has said, that the administration should follow in the drafting of proposed legislation that deals with issues pertaining to the Aboriginal people of Canada.

Senator Murray: I wish to ask the honourable senator a question. I appreciate his position and admire his passion and eloquence in defending it in general.

It is true when he says that the political process failed to define those Aboriginal rights. We were witnesses and some of us participants in that political process, which included different federal governments, the provinces and four Aboriginal organizations.

My observation is that there was a certain amount of what I called at the time "mutually reinforcing intransigence" on both sides and, unfortunately, a division, as it turned out, even among the Aboriginal organizations. However, that is not the concern for the moment.

Am I incorrect, however, in describing the honourable senator's position as being that the rights that have not been defined so far are to be defined by applying non-derogation clauses to federal legislation? Have we come to that?

Senator Joyal: Honourable senators, at the end of it, we have to find a way out of this. The debate that we had at the Standing Senate Committee on Legal and Constitutional Affairs three or four weeks ago on the amendment of Bill C-10B and participation in the previous six months of study on the bill afforded committee members the opportunity to realize the importance of this issue and how necessary it is for us to come to terms with it.

It would be most helpful if senators would put their heads together to consider some options and to return to honourable senators with options. There is not only one issue. There is not only one solution. There might be multiple approaches to this issue. There are various options that we might want to consider and debate in this chamber.

It is up to us at this point to help the court to understand what we mean by "Aboriginal rights." As a Parliament, we have a role to help the court understand. We cannot leave that responsibility solely to the court. It is not because the political process in the past has not produced all the results that we expected that we cannot question ourselves as legislators and come forward with proposals.

We are part of the definition of rights in this land. The Parliament of Canada is part of that process, especially with Aboriginal people. As I said in the past, we are a unique legislative chamber in Canada. We are the only chamber in which there are six Aboriginal people who can take part on a daily basis in our discussions and reflections. That is a tremendous opportunity to help the process. Honourable Senator Murray, who has been part of so many constitutional discussions with provincial and federal governments alike, will realize that we, as a country, must address this issue. This debate is part of the essential definition of Canada.

Honourable senators, I hope as a member of the Standing Senate Committee on Legal and Constitutional Affairs — and I see here all the members and some others in the past who have participated in the discussion — that all members will join in that study and reflection. The deadline to report is within six months, December 2003, which is rather soon. Time is short. No doubt we will want to hear from various Aboriginal groups, representatives, experts and so forth. We will want to study the judgments of the Supreme Court of Canada in relation to these issues. It will be a compelling term of reference in which I hope all honourable senators will take part.


Senator Nolin: Honourable senators, may I ask a question of the chair of the Senate Standing Committee on Legal and Constitutional Affairs?


Is it proper to do that?

The Hon. the Speaker: The honourable senator can speak or make a comment.


Senator Nolin: It is a question of the nitty-gritty. Do we have the resources? Do we have the time? What is the intent of the committee? We will definitely need support staff to achieve that.

We can put our minds to this important question. I do not intend to be part of half of an answer. If we are to provide an answer, we will provide a full answer.

I am not convinced that six months is sufficient. If it is the only time that we have, let us do it.

Is it the intent of the Chairman of Standing Senate Committee on Legal and Constitutional Affairs to seek more funds to provide the committee the proper support staff to meet such an important challenge?

Hon. George J. Furey: Honourable senators, it is difficult for me to answer the question at this time. I will need to explore it with the leadership and with the Standing Committee on Internal Economy, Budgets and Administration. We will find out.

I agree with the honourable senator that resources will be needed. Are they there? I cannot answer that question at this time.

Senator Cools: Honourable senators, perhaps these questions could be answered as the debate continues. I understand that a senator on the other side is about to take the adjournment of the debate. I intend to speak to this motion sometime next week. These answers could certainly unfold in the next several days.

Senator Furey: I do not want to cut Senator Cools off, but I do not want to leave the impression that because I do not know the answer at this stage that I will not make every effort to find the answer.

On motion of Senator Nolin, debate adjourned.


Business of the Senate

Hon. Fernand Robichaud (Deputy Leader of the Government): Honourable senators, I am saying what I say every Wednesday, as this is a day we try to finish as close to 3:30 p.m. as possible in order to allow the committees to meet. Is there consent that all items on the Orders of the Day shall remain in their respective place until the next sitting of the Senate?


The Hon. the Speaker: Is it agreed, honourable senators, that we accept Senator Robichaud's suggestion and leave the remaining matters standing in their place until the next sitting?

Hon. Senators: Agreed.

The Senate adjourned until Thursday, June 5, 2003, at 1:30 p.m.

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